Do GIFs Infringe on Copyrights?

Hello Ashley!

I’ve noticed a lot of bloggers using GIFs in their posts. I’ve been considering using GIFs, but I wasn’t sure if there are any copyright considerations I should be concerned about. Do you happen to know if there are any?

Thank you!

Amy

Note: I’m not a lawyer and what follows is not legal advice. It’s my own take and opinion on information that I’ve researched.

Many GIFs use screencaps or clips from movies or TV shows. A big question is: do GIFs infringe on that movie/TV show’s copyright? This is a major grey area, primarily because a case like this hasn’t been taken to court (not that I found in my research), so there’s no legal precedent for it.

A lot of people think that technically creating a GIF from a movie or TV show does infringe on copyright. However, GIFs often indirectly promote the TV show or movie they’re taken from, so the copyright holders don’t care to sue. In the end, it’s showing off their work without ripping the entire thing.

Other people think that since the clips taken are so small, GIFs created from them would fall under “fair use”. It’s like how you’re allowed to quote from a book if it’s under about 500 words. That’s fair use. However, this is where my first point comes into play. There’s no way to confirm FOR SURE that they’re fair use, because a case like this hasn’t been taken to court and ruled to be considered “fair use”. That’s ultimately what we need in order to confidently say it is in fact fair use.

Could you get sued for creating or using a GIF?

Potentially. I’d say it’s highly, highly unlikely because a lawsuit would be a lot of effort for something so small and insignificant. And as I said before, using a GIF is basically a form of free advertising for that movie/show. But since you are taking clips that don’t belong to you it is TECHNICALLY possible that they could sue you.

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22 comments

  1. Wow. I always use gifs in my reviews. I know a few bloggers have a disclosure or disclaimer about that
    I have not made mine. This weekend Noelle Adams commented about the use of artist and models in the teasers, she said that’s illegal because nobody has the rights for use those images… so when a blogger o reviewer designs a fan teaser with an artist image the authors shouldn’t promote it in their social media because it’s for promotional intentions no matter what.

    My question is if I use a image obtained via pinterest, tumblr o we heart it for teasers is the same?

    1. Using an image obtained via Pinterest or Tumblr is illegal. It’s like getting a random image from Google and using it on your site.

      The difference here is that using a GIF is using like 10 frames from a video that might have millions of frames. It’s a tiny portion of an overall product. That’s why it possibly falls under “Fair Use”. You’re not using the whole thing—you’re using a small part.

      But taking an IMAGE is taking the entire product. Someone owns the copyrights to that image and if you use it without written permission, you’re infringing on their copyright.

  2. I don’t think there is any risk of copyright infringement as long as 1) you don’t claim it’s original content (like pretend Daniel Radcliff in your animated gif is a pic of your bro) 2) it’s not insulting to the original content 3) most important: it’s not used to make money (e.g. you sell your animated gif or include the gif/content in something that you sell).

    Now, that being said, you can also just not use animated gif because [harsh mode ON] it’s been so overdone and it’s getting slightly annoying. [harsh mode OFF] Ok, that’s just my opinion (and I only liked animated gif in, like, the 90′!)

    Angélique recently posted: Solaris by Stanisław Lem [Poland]
    1. Well copyright infringement is still there even if you credit the original source. That’s why you can’t use an image from Google/Pinterest on your blog and say:

      “Photo credits to [source]”

      That’s still a copyright violation because you don’t have written permission to use that image. (even if you’re not using it to make money)

      But that being said, I do think most GIFs would probably fall under “Fair Use” policy as I explained. 🙂

  3. I don’t use GIFs often, but I admit, I hadn’t thought about the copyright issue. I suspect you are right that it would be considered fair use, but it’s interesting that there haven’t been any cases yet. Of course, it’s so ubiquitous a practice by now that I kind of assume that the TV and movie folks have decided not to worry about it — if they were worried, they’d probably have tackled it by now. Piracy of the full-length show or movie is a much bigger violation, and seems to be what they are concentrating on.

    Lark @ The Bookwyrm's Hoard recently posted: REVIEW: Until We Touch (Fool's Gold), by Susan Mallery
  4. I haven’t read the above comments, so I’m not sure if someone has already said the following. My understanding of fair use (mainly gained in library school) is that it only applies to things like criticism, education, archiving, news, etc. With that definition in mind, I’m not sure GIFs used in reviews fall under fair use. They would if they were used in a review of the show or movie that the GIFs came from. If there GIFs used to review books, I’m thinking they don’t fall under that doctrine. That’s one of the reasons I never use them. However, as you said, no one cares enough to take anyone to court over them. Copyright regulations can be fuzzy with things like this. This is just my take on it.

    Laura Ashlee recently posted: Austen in August!
    1. Those are examples of fair use, but fair use doesn’t only apply to those. Something that is used for education or archiving is more likely to be ruled as “fair use” but there are four main factors that come into play and are carefully weighed and considered:

      * the purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes;

      * the nature of the copyrighted work;

      * the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

      * the effect of the use upon the potential market for or value of the copyrighted work.

      There’s really no clear cut line, which is why it’s hard to specifically pin point whether or not GIFs would fall under fair use. It’s pretty much impossible to say for sure without some legal precedent.

      But fair use can apply to creative works that aren’t used for education/news/etc., it’s just a lot more restrictive.

  5. When I first read the subject of this post I was really curious. I admit, before I read it I thought over gifs and copyright and what I thought of it. Then reading your post, I just kept nodding because you were saying pretty much exactly what I’d been thinking as I considered it. I would think the studios would see more benefit in the promotion and goodwill gifs generally create. Plus, tracking down all the places is online and issuing take down notices or pursuing litigation would be an administrative nightmare.

    Annie recently posted: London
  6. See, the whole “free advertisement so you should thank me for using your licensed content to promote myself” argument doesn’t logically work for me, because couldn’t the same thing be said for me using song lyrics in a novel? Like “Oh, hey, Beyonce. I was doing you a favor by having my characters sing your songs at a talent show.” She could still sue. Fair use for song lyrics is something like an author can use 5-7 words as part of the text, but using them in front of a chapter as a pithy quote is even more restricted. (This is what a literary lawyer told me, anyway.) The “this is free advertising” argument also makes it sound like if Beyonce wants to sample Crappy Unknown Garage Band in her latest song and just import their lyrics and make a million dollars that she’s doing them a favor, because chances are they’ll get more exposure and make at least a few thousand bucks. But my understanding is that no, Beyonce has to pay and if CUGB doesn’t want their song sampled then Beyonce can’t do it without their permission.

    I know this post is old, Ashley. If you come across anything definitive, I’d love an update. I get why using 2 seconds of footage from a network TV show might be considered Fair Use the way that using 5 words from a song is, but what about the gifs made from someone’s video of their cat or their kid playing soccer or stuff that they might have posted on Facebook but that isn’t necessarily public domain.

    I know bloggers run a lower risk of being sued because most of them aren’t making lots of money via the use of gifs, but authors have been sued for thousands of dollars just for using someone’s static image (and providing credit and a link back to the original posting) in a blog post in a way that some people might view as “free advertising.” I like gifs and would love to incorporate them into my blogging, but for me the possibility of being sued makes it not worth the risk. I abandoned my Pinterest boards for the same reason, but I kind of miss it 🙁

  7. I’ve always been so curious about this and I’ve refrained from using them because I wasn’t sure. I’m glad no one has been sued yet! I guess until there’s a lawsuit it’ll be a gray area and I probably won’t use them until I’m 100% sure. Knowing my luck I’d be the one to get sued.

  8. A few TV show Wikia communities ran into issues, and they had two types of GIFs: ones with network logos and ones without. The networks let them keep the GIFs with network logos, but they had to remove the ones without them. I don’t remember which communities or networks were involved, but maybe GIFs with network logos are more acceptable?

    In some ways, I guess the logo helps make the series more recognizable—especially since so many people know networks’ logos.

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